State v. Danial Christopher Wheaton

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
July 27, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2022AP2082-CR Cir. Ct. No. 2021CT3

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DANIAL CHRISTOPHER WHEATON,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Waushara County:
GUY D. DUTCHER, Judge. Affirmed.

¶1 GRAHAM, J.1 Danial Wheaton appeals a judgment convicting him
of operating a motor vehicle with a prohibited alcohol concentration, third offense.
It is undisputed that, after Wheaton was arrested and before he consented to a blood

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
No. 2022AP2082-CR

draw for chemical testing, the arresting officer misread one line of the “Informing
the Accused” script that is required by Wisconsin’s implied consent law, WIS. STAT.
§ 343.305(4). Wheaton contends that the results of his blood test should have been
suppressed as a result of the officer’s mistake or, alternatively, that the circuit court
should have entered an order stripping the result of the presumption of admissibility
for implied consent tests under WIS. STAT. §§ 343.305(5)(d) and 885.235(1g). I
disagree and affirm the judgment of conviction.

BACKGROUND

¶2 In January 2021, officers pulled over Wheaton’s vehicle for an
equipment violation and determined that he exhibited signs of intoxication. The
officers subjected Wheaton to field sobriety testing, during which he repeatedly lost
his balance. When administering a preliminary breath test, one of the officers asked
Wheaton if he knew the “legal limit” in Wisconsin, and Wheaton responded that the
limit is .08. The result of the preliminary breath test was significantly over that
limit. An officer advised Wheaton that he would be “placed under arrest for OWI.”2

¶3 Wheaton was placed in the back of a squad car, and the arresting
officer read Wheaton the Informing the Accused script. See WIS. STAT.
§ 343.305(4). However, as further discussed below, the officer made a mistake in
reading the first sentence of that script. Wheaton consented to having his blood

2
The Wisconsin Jury Instructions use “OWI” as an umbrella term, which encompasses
operating while under the influence of an intoxicant (to a degree that renders the driver incapable
of safely driving), contrary to WIS. STAT. § 346.63(1)(a), and operating with a prohibited alcohol
concentration (as defined by WIS. STAT. § 340.01(46m)), contrary to § 346.63(1)(b), among other
things.

Throughout this opinion, I use the term “OWI-related offense” to refer to a violation of any
of the offenses, including WIS. STAT. §§ 346.63(1), (2), (2m), (6), 940.09, and 940.25, that are
enumerated in WIS. STAT. § 343.305(3)(a) and (9)(a)5.a.

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No. 2022AP2082-CR

drawn for chemical testing, and the results showed a blood alcohol concentration of
.158 g/100 mL. Wheaton was charged with one count of operating a motor vehicle
with a prohibited alcohol concentration and one count of operating a motor vehicle
while under the influence of an intoxicant, both as third offenses.

¶4 Wheaton filed several pretrial motions, including a motion addressing
the mistake the arresting officer made in reading the Informing the Accused script.3
WISCONSIN STAT. § 343.305(4) directs officers to read the following script:

You have either been arrested for an offense that involves
driving or operating a motor vehicle while under the influence of
alcohol or drugs, or both, or you are the operator of a vehicle that
was involved in an accident that caused the death of, great bodily
harm to, or substantial bodily harm to a person, or you are
suspected of driving or being on duty time with respect to a
commercial motor vehicle after consuming an intoxicating
beverage.

This law enforcement agency now wants to test one or
more samples of your breath, blood or urine to determine the
concentration of alcohol or drugs in your system. If any test shows
more alcohol in your system than the law permits while driving,
your operating privilege will be suspended. If you refuse to take
any test that this agency requests, your operating privilege will be
revoked and you will be subject to other penalties. The test results
or the fact that you refused testing can be used against you in court.

If you take all the requested tests, you may choose to take
further tests. You may take the alternative test that this law
enforcement agency provides free of charge. You also may have
a test conducted by a qualified person of your choice at your
expense. You, however, will have to make your own
arrangements for that test.

If you have a commercial driver license or were operating
a commercial motor vehicle, other consequences may result from
positive test results or from refusing testing, such as being placed
out of service or disqualified.

3
Wheaton also filed two other pretrial motions seeking to suppress evidence, which the
circuit court denied. Wheaton does not challenge the denial of these other motions on appeal.

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No. 2022AP2082-CR

Here, however, the arresting officer misread the first sentence of the script, adding
the bracketed language: “You have either been arrested for an offense [that involves
drinking …] that involves driving or operating a motor vehicle while under the
influence of alcohol or drugs, or both ….” The officer read the remainder of the
script verbatim.

¶5 In his pretrial motion, Wheaton alleged that the officer’s mistake
would have led Wheaton to believe that he was being arrested for an “absolute
sobriety” offense, and that this “misinformation … interfered with his right to make
an informed choice regarding his statutory and constitutional due process rights.”4
Wheaton asked the circuit court to suppress the results of the test on that basis or, in
the alternative, to strip the result of the presumption of admissibility found in WIS.
STAT. §§ 343.305(5)(d) and 885.235(1g).5

¶6 The circuit court held an evidentiary hearing, at which the arresting
officer testified. Pertinent here, the officer acknowledged that he had misread the
first sentence of the Informing the Accused script. He testified that he realized that

4
Wheaton made two additional arguments about the officer’s mistake in reading the script
that he does not renew on appeal: that it interfered with his due process right to receive notice of
the offense for which he was arrested; and that it was prejudicially misleading under the framework
set forth in County of Ozaukee v. Quelle, 198 Wis. 2d 269, 542 N.W.2d 196 (Ct. App. 1995).
5
The “presumption of admissibility,” which is spelled out in WIS. STAT. §§ 343.305(5)(d)
and 885.235(1g), allows implied consent tests to be admitted without accompanying expert
testimony. Paragraph 343.305(5)(d) provides that, “[a]t the trial of any civil or criminal action or
proceeding arising out of” an OWI-related offense, “the results of a test administered in accordance
with [§ 343.305] are admissible on the issue of whether the person was under the influence of an
intoxicant.” That paragraph further provides that “[t]est results shall be given the effect required
under [§] 885.235.” Subsection 885.235(1g), in turn, provides that, “if the sample was taken within
3 hours after the event to be proved,” the test result “is admissible on the issue of whether [the
person] was under the influence of an intoxicant or had a prohibited alcohol concentration …
without requiring any expert testimony as to its effect.” As relevant here, § 885.235(1g)(c)
provides: “The fact that the analysis shows that the person had an alcohol concentration of 0.08 or
more is prima facie evidence that [the person] was under the influence of an intoxicant and is prima
facie evidence that [the person] had an alcohol concentration of 0.08 or more.”

4
No. 2022AP2082-CR

he had misspoken and corrected his mistake, but he acknowledged that he did not
specifically inform Wheaton that he had make a mistake.

¶7 The circuit court denied Wheaton’s motion. In so doing, the court
characterized the officer’s mistake as “stumbling” over language in the first
sentence of the script. The court stated that “arguably,” the officer could have done
more to “appropriately correct[]” the mistake. Even so, the court determined that
the officer did correct the mistake, and further, that the officer’s “linguistic misstep”
did not “create[] a degree of infirmity that would … necessitate the [c]ourt
suppressing what was otherwise a very clear and consensual provision of a blood
specimen” by Wheaton. The court determined that the evidence “unequivocally
indicate[d]” that Wheaton was “well aware” of what was taking place, and that there
was “nothing to suggest to him in any way, shape or form that he was addressing an
absolute sobriety situation.”

¶8 Following the denial of his pretrial motions, Wheaton pled no contest
to the count of operating a motor vehicle with a prohibited alcohol concentration of
.08 or more as a third offense, and the court found him guilty of that charge.
Wheaton appeals the judgment of conviction, challenging the court’s denial of his
motion related to the Informing the Accused script.6

6
A defendant who pleads guilty or no contest to criminal charges forfeits the right to raise
almost all non-jurisdictional defects, including constitutional claims, on appeal. State v. Multaler,
2002 WI 35, ¶54, 252 Wis. 2d 54, 643 N.W.2d 437. We have referred to this proposition as the
“guilty plea waiver rule.” WISCONSIN STAT. § 971.31(10) is a “narrowly crafted exception” to the
guilty plea waiver rule that “permits appellate review of an order denying a motion to suppress
evidence, notwithstanding a guilty [or no contest] plea.” State v. Conner, 2012 WI App 105, ¶15,
344 Wis. 2d 233, 821 N.W.2d 267.

5
No. 2022AP2082-CR

DISCUSSION

¶9 WISCONSIN STAT. § 343.305 provides that any person who drives or
operates a motor vehicle on a public roadway in Wisconsin is deemed to have given
their “implied consent” to chemical testing of a sample of their blood, breath, or
urine if they are arrested for an OWI-related offense. See § 343.305(2), (3)(a). A
law enforcement officer who arrests a driver for an OWI-related offense and seeks
chemical testing pursuant to the implied consent law is required to read the
Informing the Accused script to the driver. See § 343.305(4). This script provides
standard language advising the driver of certain consequences of submitting to
testing and certain consequences of refusing. The script also informs the driver of
their right to alternative testing, provided that the driver submits to the test requested
by law enforcement. See § 343.305(5)(d).

¶10 I begin by observing that suppression of the blood test result is not an
available remedy to address an officer’s failure to comply with WIS. STAT.
§ 343.305(4). See State v. Zielke, 137 Wis. 2d 39, 51, 403 N.W.2d 427 (1987)
(“nothing in [§ 343.305] or its history permits the conclusion that failure to comply
with [§ 343.305(4)7] prevents the admissibility of legally obtained chemical test
evidence in [a] … criminal prosecution for offenses involving intoxicated use of a
vehicle”). I therefore conclude that, although Wheaton asked the circuit court to
suppress the blood test result, the most he could be entitled to is a ruling that the

7
The Zielke opinion was issued in 1987. At that time, the statutory requirements for
informing the accused were found in WIS. STAT. § 343.305(3)(a) (1985-86). That subsection was
subsequently amended and renumbered, and the requirements are now found in the current version
of WIS. STAT. § 343.305(4).

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No. 2022AP2082-CR

State would not be able to rely on the presumption of admissibility when seeking to
admit the blood test results at trial.8

¶11 Wisconsin case law is replete with opinions addressing mistakes that
officers have made in supplying the information required by WIS. STAT.
§ 343.305(4). These cases do not require “complete compliance” with
§ 343.305(4), but they do require “substantial compliance.” Washburn Cnty. v.
Smith, 2008 WI 23, ¶62 n.52, 308 Wis. 2d 65, 746 N.W.2d 243 (citing State v.
Muente, 159 Wis. 2d 279, 281, 464 N.W.2d 230 (Ct. App. 1990); State v. Wilke,
152 Wis. 2d 243, 250, 448 N.W.2d 13 (Ct. App. 1989)). As explained in Smith, to
substantially comply with § 343.305(4), an officer must “provide the statutorily
required information.” Smith, 308 Wis. 2d 65, ¶¶65, 75.

¶12 Here, the officer provided the statutorily required information. He
informed Wheaton that he had been arrested for one of several enumerated offenses,
and of all the statutorily required information about the consequences of submitting
to testing, the consequences of refusing, and the right to alternative testing. See
WIS. STAT. § 343.305(4).

¶13 It is undisputed that the officer misspoke by adding three words—
“that involves drinking”—when reading the first sentence of the script, which
identifies offenses that are subject to the implied consent law. See WIS. STAT.
§ 343.305(4). During the circuit court proceedings, and then in his opening

8
The State does not argue that the guilty plea waiver rule precludes Wheaton from
pursuing his alternative argument that he is entitled to a remedy other than suppression on appeal.
I therefore assume without deciding that the guilty plea waiver rule does not preclude Wheaton’s
alternative argument that he was entitled to an order stripping the test results of the presumption of
admissibility, but I note that this is no small assumption in Wheaton’s favor. See supra, n.6
(discussing “narrowly crafted exception” to the guilty plea waiver rule found in WIS. STAT.
§ 971.31(10)).

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No. 2022AP2082-CR

appellate brief, Wheaton argued that the officer’s mistake interfered with his ability
to make an informed choice about his right to request alternative testing. This
argument rests on an underlying premise that was rejected by the circuit court—
that, based on the officer’s misstatement, Wheaton could have or would have
inaccurately believed that he had been arrested for an absolute sobriety offense.
According to Wheaton, the officer mistakenly advised him that he was being
arrested for “drinking and driving,” which “clearly implies” that “the mere act of
drinking any alcoholic beverage and operating a motor vehicle is sanctionable.”
Therefore, Wheaton argues, “he might [have been] led to believe it [was] ‘not worth
it’ to seek additional chemical test evidence” because he knew that his blood alcohol
concentration would be above .00.

¶14 The circuit court rejected this underlying premise as an unreasonable
interpretation of the facts, and I agree with the circuit court’s assessment. Based on
the facts recited above, it is apparent that Wheaton understood that the prohibited
blood alcohol concentration that applied to him was .08. It is also apparent that
Wheaton understood that he was being arrested, not merely because the officers
suspected he had been drinking, but because the officers had determined that he was
impaired. To be sure, the officer stated that he had been arrested “for an offense
that involves drinking,” yet it is undeniable that the offense for which he was
arrested did involve drinking. I agree with the circuit court that the officer’s
“linguistic misstep” in reading the script would not have misled Wheaton into

8
No. 2022AP2082-CR

believing that he was being arrested for an “absolute sobriety offense,” or that he
could be prosecuted for “any drinking and driving.”9

¶15 Wheaton changes course in his rely brief on appeal. He now contends
that it does not matter whether the officer’s mistake actually interfered with his
understanding of the information that WIS. STAT. § 343.305(4) requires officers to
provide. Citing Smith, 308 Wis. 2d 65, and Wilke, 152 Wis. 2d 243, Wheaton
contends that a driver is entitled to a remedy if the officer makes any “misstatement”
during the recitation of the Informing the Accused script, regardless of whether the
mistake was consequential in any way. Smith and Wilke do not stand for this
proposition. As discussed above, these cases require “substantial compliance” but
not “complete compliance” with § 343.305(4). As discussed, the officer provided
the statutorily required information, and Wheaton fails to demonstrate that the
officer’s mistake interfered with Wheaton’s understanding of any of the information
in § 343.305(4).

¶16 For all of these reasons, I conclude that the officer substantially
complied with WIS. STAT. § 343.305(4), and I affirm the judgment of conviction.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

9
Wheaton also contends that he was especially susceptible to misinformation on this point
because he held a commercial driver’s license, but he does not explain the chain of inferences that
support this contention. The Informing the Accused script that was read to Wheaton advised him
that one of the alternative offenses he could have been arrested for was “driving or being on duty
time with respect to a commercial motor vehicle after consuming an intoxicating beverage.” It is
undisputed that Wheaton was not driving or on duty time with respect to a commercial motor
vehicle when he was arrested, and the undisputed facts show that Wheaton understood that the .08
limit applied to him at the time he was arrested.

9